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The Arab Association for Human Rights (HRA) is an independent, grassroots, non-governmental organization (NGO) registered in Israel. It is one of the longest operating human rights organizations in Is...

A summary[1] of the position of the 'Coalition against the Kaminitz Law'

In accordance with Government Resolution No. 1559[2], concerning stronger enforcement of the planning and construction laws, the government published on August 1, 2016 the Draft Planning & Construction Law (Amendment No. 109) 5776-2016[3] (hereinafter - the "Proposal" or the "Kaminitz Law").

The purpose of the proposed amendments is, as aforesaid, to intensify enforcement and penalization of building offenses. To realize this purpose it is proposed, inter alia, to restrict the discretion of the court considering the enforcement of construction offenses; to expand the powers and discretional boundaries of administrative entities, especially national planning entities, and planning enforcement entities, in connection with the enforcement of planning laws and dealing with construction without permit; increasing the amounts of fines and lengthening prison terms for construction offenses, as well as expanding the circle of penalization for these offenses.

Although the proposed amendments have implications on the enforcement of planning laws throughout the country, as set forth in the explanation to the Amendment, however one should not ignore their far-reaching effects on Arab citizens. About 90% of the Arab citizens of Israel live in 139 Arab towns or villages. These places suffer from a very severe housing shortage which is a consequence of the deliberate long-term policy of which construction without permits is only one symptom.

In light of the aforesaid, the above organizations hereby present their position concerning the Draft Law, that will focus on the implications of the proposed amendments on the Arab citizens of the State and the Arab local authorities, and the connection between the need to find appropriate and proper solutions for the many years of planning problems in Arab towns and villages and the enforcement of the planning laws in those places.

Below is a summary of the position of the organizations:

Increasing Demolition while Ignoring the Existing Situation - A building demolition policy such as that proposed in the Kaminitz Law that ignores the long-term planning pressure in the Arab Sector, and the State's planning failures, which lead many citizens to commit offenses, is not commensurate with the basic principles of justice and it stands in total opposition to the Basic Law: Human Dignity and Liberty, which establishes the right to a roof over one's head as a constitutional right.

In light of the aforesaid, we shall already state that, in our opinion, there is no justification for promoting the Kaminitz Law, which seeks to exacerbate the demolition policy. Instead, we believe that the best method would be to hold talks with the heads of the Arab local authorities and other representatives of the Arab public, with a view to approving plans enabling them to obtain lawful building permits in the Arab towns and villages, as well as regularizing existing construction.

Failure to Distinguish between Types of Offenses - Building offenses are not uniform. There are different types of offenses, very different in motive and character. Thus, for instance, there is construction without permit that is of an economic character, such as construction of a commercial center on agricultural land and, on the other hand, construction of residential buildings without permit, which is usually done on a background of absence of appropriate planning infrastructure. There are also cases where construction without permit relies on explicit government promises of ongoing "looking the other way" - from which it may be inferred that the government authorities have accepted or agree to the situation.

Until an appropriate solution is found for the planning problem for the Arab population, a clear mechanism should be specified to distinguish between the types of offenses and to establish an appropriate judicial policy that will help to structure judicial discretion.

Extended Penalization, Longer Prison Sentences and Larger Fines for Planning Offenses - One of the clear characteristics of the new law is more severe penalties for planning offenses, and expansion of responsibility for those offenses to people who, it is reasonable to assume, had nothing to do with the construction without permit and had no ability to affect or prevent it. This approach is unjustified and could lead to the incrimination of a wide circle of innocent persons. It is well known that, in Arab society, ownership of land is mostly jointly held ("Musha"), and the ownership in the Land Registration Bureau is not always up to date. In fact, a situation could be created where a large number of heirs of small parts of a plot or parcel on which a forbidden building is built by only one of the owners will be liable to heavy penalties without their having the smallest idea of the unlawful construction.

Our position is that amendments to the Planning and Construction Law and other laws that are intended to intensify and strengthen the enforcement of the planning and construction laws must express the purpose of the Planning and Construction Law, the essence of which is not just to penalize. They must also express the close relationship between the exercise of enforcement and penalization powers by the authorities (including the issue and execution of administrative demolition orders) and the fulfillment of the initial lawful obligations of the planning institutions and other administrative entities to construct an appropriate planning framework that will enable legal construction for the population's housing needs.

Reduction of the Court's Discretion in the Enforcement Proceedings - One of the tendencies in the proposed Amendment is to reduce judicial involvement in the enforcement proceedings of the planning laws, and expansion of the administrative powers to enforce the law against construction without permit, and actual demolition of buildings.

The court's discretion with respect to planning enforcement proceedings must not be restricted. We also consider it obligatory to allow the judicial instance broader discretion to take account of the appropriate cases in the general planning circumstances. The court should examine whether it is a planning omission that is the cause of the illegal construction, particularly when determining the severity of the penalty and when examining applications to postpone the date of execution of demolition orders.

Delegation of Enforcement Powers - Reducing Discretion by Local Planning Entities and Imbalance in Transferring Powers to Regional Authorities - The mechanism proposed is a centralistic mechanism in which almost all enforcement powers (determining procedures and enforcement directives, training and activating supervisors, monitoring and controlling the enforcement mechanism, and actual demolition of construction without permit) might be transferred to the director of the national unit for enforcement of planning laws.

Thus, it is proposed to determine that, if the director of the national unit and the director of the department for enforcement of land laws find that a local committee is not fulfilling the enforcement obligations imposed on it, they will be able to take from it all or some of these powers, in the whole or part of the local planning region, for a time to be determined by them, and on terms to be determined by them. That is an invalid mechanism.

First of all, it will adversely affect the discretion of the local planning entities, who are more familiar with the local needs and the order of preference in enforcement; secondly, it will negate the possibility of using other legitimate methods for fighting construction without permit in the Arab population in particular, such as preparing outline plans and detailed plans for the Arab towns and villages, expanding jurisdictions and giving permits to buildings that were constructed without permit where possible, without interfering with other planning considerations These alternative proceedings could lead to a significant reduction in construction offenses in the Arab population and could resolve the institutional land and housing discrimination against the Arab citizens of the State without actually demolishing the buildings.

As an alternative to this proposal, it is suggested to examine the implementation of the proposal of the Committee of Heads of Local Arab Authorities concerning a tri-partite treaty between the planning and construction and enforcement institutions, the local Arab authorities, and the residents. It is proposed that the planning institutions shall act to freeze proceedings and demolitions against houses without permit, and shall act to increase the pace of approval of regularizing outline plans. The authorities shall act to take forward-looking supervisory and enforcement responsibility within the boundaries of the authority.

Granting Enforcement Powers to the Nature and Parks Authority - The power to exercise administrative enforcement powers is special and sensitive, and is exercised with broad discretion, giving weight to various grounds. As a policy, the circle of those holding enforcement powers should not be extended to additional entities which are in charge of narrow public interests, which might not grant weight to other relevant considerations.

Retroactive Enforcement Compared with Future Implementation - The Draft Law contains almost no reference to the period of implementation. In this context, it is important to emphasize that any intention to exercise and implement the colossal penalization measures against the large reservoir of buildings, that were erected without permit in the Arab towns and villages which, as aforesaid, developed as a result of the land shortage and the ongoing failures to promote development-promoting outline plans, or against tens of thousands of residents presently living in buildings that were built without permit, with no other choice, and which could find themselves responsible, pursuant to the new amendment to the law, for committing the offense of "forbidden use", will be perceived as vengeance and could be detrimental to the implementation of Government Resolution 922.

In this context it is important to emphasize and clarify beyond all doubt that all measures proposed to increase penalization against construction offenses, if adopted pursuant to the Draft Law, will not apply retroactively to existing buildings but will constitute a forward-looking measure for enforcement and deterrence.

As detailed in the full position paper of the Coalition against the Kaminitz Law, building without permits in Arab towns and villages does not occur in a vacuum and is not a matter of choice or desire to break or belittle the laws of the State. This construction is usually due to absence of options, and is designed to provide a roof over the heads of Arab young people and families, who have been left by the government and planning authorities for many years with no housing solutions or even planning solutions. It is in fact a consequence of the authorities' planning omissions, which are expressed inter alia in a lack of or defective planning, which does not resolve the basic housing needs of the Arab population.

In light of the previously mentioned, in our opinion, there is no justification for promoting the Kaminitz Law, which seeks to exacerbate the demolition policy. Instead, we believe that the best method would be to hold talks with the heads of the Arab local authorities and other representatives of the Arab public, with a view to approving plans enabling them to obtain lawful building permits in the Arab towns and villages, as well as regularizing existing construction.

Signed:

The Association for Civil Rights in Israel

The Arab Center for Alternative Planning

Massawa Center

Sikkuy - the Association for the Advancement of Civic Equality

Mizan Center

Bimkom - Planners for Planning Rights

Arab Association for Human Rights -HRA

[1] For the full position paper: http://www.acri.org.il/en/2017/02/06/position-paper-k…construction-law/

The Arab Association for Human Rights (HRA), founded in 1988 by lawyers and community activists, is an independent, grassroots, non-governmental organization (NGO), registered in Israel. HRA works to promote and protect the political, civil, economic, and cultural rights of the Palestinian Arab minority in Israel from an international human rights perspective.